CHAP. XI. swer or swer or reply, alleging facts material to the case, occurring 22 B., 259; 4 Bos., 638; 13 How. P. R., 247; 12 How. P. R., 521; 8 SEC. 178. No person to be arrested, except as prescribed by this act. 179. Cases in which defendant may be arrested. 180. Order for arrest, by whom made. 181. Affidavit to obtain order. To what actions this chapter applicable. 182. Security by plaintiff, before order for arrest. 183. Order, when made and its form. 184. Affidavit and order to be delivered to sheriff, and copy to defendants. 185. Arrest, how made. 186. Defendant to be discharged on bail or deposit. 187. Eail, how given. 188 & 189. Surrender of defendant. 190. Bail, how proceeded against. 191. Bail, how exonerated. 192. Delivery of undertaking to plaintiff, and its acceptance or rejection by him. 193. Notice of justification. New undertaking, if other bail. 194. Qualifications of bail. 195 & 196. Justification and allowance of bail. 197. Deposit of money with sheriff. 198. Payment of money into court by sheriff. 199. Substituting bail for deposit. 200. Money deposited how applied, or disposed of. 201. Sheriff, when liable as bail; and his discharge from liability. 202. Proceedings on judgment against sheriff. 203. Bail liable to sheriff. 204. Motion to vacate order of arrest, or reduce bail. 205. Affidavits on motion. rested, ex $178. No person shall be arrested in a civil action except No person as prescribed by this act; but this provision shall not affect to be ar the act to abolish imprisonment for debt, and to punish frau- cept as predulent debtors, passed April 26, 1831, or any act amending this act. the same, nor shall it apply to proceedings for contempts. 15 B., 402; 10 B., 46; 22 How. P. R., 501; 8 How. P. R., 134; 7 How. scribed by $179. The defendant may be arrested, as hereinafter pre- Cases in scribed, in the following cases: 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining or converting property; 2. In an action for a fine or penalty, or on a promise to which defendant may be ar rested. PART IIL Order for marry, or for money received, or property embezzled or fraudulently misapplied, by a public officer or by an attorney, solicitor or counsellor, or by an officer or agent of a corporation or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment; 3. In an action to recover the possession of personal property unjustly detained, where the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found, or taken, or with the intent to deprive the plaintiff of the benefit thereof; 4. When the defendant has been guilty of a fraud, in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought; 5. When the defendant has removed, or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested, in any action except for a willful injury to person, character or property. Amended by Laws of 1851, ch. 479; 1863, ch. 392. 9 N. Y., 210; 6 N. Y., 562; 30 B., 61, 507; 28 B., 204; 26 B., 82; 17 B., 644; 16 B., 314; 15 B., 405; 12 B., 612; 11 B., 303; 8 B., 170, 511; 4 Bos., 94, 646; 3 Bos., 634; 4 E. D. S., 139, 227; 1 E. D. S., 256; 2 Hilt., 502; 3 S. S. C., 709; 23 How. P. R., 244, 421; 22 How. P. R., 416; 21 How. P. R., 116; 20 How. P. R., 311; 18 How. P. R., 45, 94; 17 How. P. R., 69, 483, 518; 15 How. P. R., 48, 97, 210; 14 How. P. R., 136, 408; 13 How. P. R., 222, 231; 12 How. P. R., 19, 289; 11 How. P. R., 9, 108; 10 How. P. R., 37, 259; 8 How. P. R., 111 298; 6 How. P. R., 86, 241, 316, 338; 5 How. P. R., 150, 251, 327; 3 How. P. R., 265; 13 Ab., 405; 12 Ab., 242; 11 Ab., 126, 261, 416; 10 Ab., 102, 256, 320; 9 Ab., 92; 8 Ab., 413; 7 Ab., 433; 6 Ab., 37; 5 Ab., 164, 389; 4 Ab., 50; Ab., 259; 2 Ab., 186, 445; 1 Ab., 76, 443. $180. An order for the arrest of the defendant, must be arrest, by obtained from a judge of the court in which the action is brought, or from a county judge. whom made. Affidavit to To what chapter 11 B., 307; 20 How. P. R., 236, 441; 12 Ab., 293. S181. The order may be made, where it shall appear to the judge by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section 179. The provisions of this chapter shall apply to all actions actions this included within the provisions of section 179, which shall have applicable. been commenced since the thirtieth day of June, one thousand eight hundred and forty-eight, and in which judgment shall not have been obtained. 9 N. Y., 210; 6 N. Y., 562; 30 B., 63; 26 B., 82; 8 B., 170; 21 How. CHAP. XI. fore order $182. Before making the order, the judge shall require a Security by written undertaking on the part of the plaintiff, with or with- plaintiff be out sureties, to the effect, that if the defendant recover judg- of arrest. ment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars. If the undertaking be executed by the plaintiff, without sureties, he shall annex thereto an affidavit that he is a resident and householder or freeholder within the state, and worth double the sum specified in the undertaking, over all his debts and liabilities. 26 B., 58; 12 How. P. R., 381; 9 How. P. R., 255; 10 Ab., 424; 3 Ab., when made, $183. The order may be made to accompany the summons, Order, or at any time afterwards, before judgment. It shall require and its the sheriff of the county, where the defendant may be found, form. forthwith to arrest him and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attorney by whom it shall be subscribed or indorsed. But said order of arrest shall be of no Order of avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law before the docketing of any judgment in the action, and the defendant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action, and to move to vacate the order of arrest, or to reduce the amount of bail. As amended by Laws of 1862, ch. 460. arrest. 11 B., 303; 8 B., 170; 16 How. P. R., 525; 13 Ab., 181; 8 Ab., 150. $184. The affidavit and order of arrest shall be delivered Amdavit to the sheriff, who, upon arresting the defendant, shall deliver to be dellto him a copy thereof. 9 How. P. R., 255. and order vered to sheriff, and copy to defendant. how made. $ 185. The sheriff shall execute the order, by arresting the Arrest, defendant and keeping him in custody, until discharged by law; and may call the power of the country to his aid, in the execution of the arrest as in case of process. 10 B., 52. to be dis $186. The defendant at any time before execution, shall Defendant be discharged from the arrest, either upon giving bail, or upon charged on depositing the amount mentioned in the order of arrest, as deposit. provided in this chapter. 7 B., 658. bail or $187. The defendant may give bail, by causing a written Bail, how undertaking to be executed by two or more sufficient bail, given. stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, PART III. Surrender of defendant. The same. Bail, how proceeded against. Bail, how exonerated. or if he be arrested for the cause mentioned in the third subdivision of section 179, and undertaking to the same effect as that provided by section 211. 6 N. Y., 564; 32 B., 91; 31 B., 63; 15 B., 26; 10 B., 52; 8 B., 512; 17 How. P. R., 69, 518; 15 How. P. R., 12, 92; 8 How. P. R., 111; 10 Ab., 19, 280; 8 Ab., 152; 2 Ab., 18. S188. At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner : 1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender; 2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may upon a notice to the plaintiff, of eight days, with a copy of the certificate, order that the bail be exonerated; and on filing the order and the papers used on said application, they shall be exonerated accordingly. But this section shall not apply to an arrest for cause mentioned in subdivision 3, of section 179 so as to discharge the bail from an undertaking given to the effect provided by section 211. As amended by Laws of 1851, ch. 479. 8 B., 512. S189. For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him, or by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. $ 190. In case of failure to comply with the undertaking the bail may be proceeded against by action only. $191. The bail may be exonerated, either by the death of the defendant or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court. 12 B., 612; 22 How. P. R., 91; 21 How. P. R., 147; 20 How. P. R., 18; 17 How. P. R., 441; 13 Ab., 103; 12 Ab., 81, 179; 10 Ab., 279. Delivery of $192. Within the time limited for that purpose the sheriff undertak ing to plain- shall deliver the order of arrest to the plaintiff or attorney by tiff, and its whom it is subscribed, with his return indorsed, and a certified Fiction by copy of the undertaking of the bail. The plaintiff, within ten reception or days thereafter, may serve upon the sheriff, a notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability. 4 How. P. R., 31; 3 How. P. R., 384; 9 Ab., 184. CHAP. XL. tion. $193. On the receipt of such notice, the sheriff or defend- Notice of ant may, within ten days thereafter, give to the plaintiff or justificaattorney by whom the order of arrest is subscribed, notice of the justification of the same, or other bail, (specifying the places of residence and occupation of the latter,) before a judge of the court, or county judge, at a specified time and place; the time to be not less than five nor more than ten days thereafter. In case other bail be given, there shall be a new undertaking, in the form prescribed in section one hundred and eighty-seven. As amended by Laws of 1851, ch. 479. 12 How. P. R., 198; 13 Ab., 423; 2 Ab., 385. $194. The qualifications of bail must be as follows: New underother bail. taking if Qualifica tions of 1. Each of them must be a resident and householder or bail. freeholder, within the state; 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution, but the judge, or a justice of the peace on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. 7 Ab., 73. tion of bail. $195. For the purpose of justification, each of the bail Justincashall attend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. 13 Ab., 423. of bail. $196. If the judge or justice of the peace find the bail Allowance sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability. 13 Ab., 423; 2 Ab., 385. money with $197. The defendant may, at the time of his arrest, instead Deposit of of giving bail, deposit with the sheriff the amount mentioned the sheriff. in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody. money into § 198. The sheriff shall, within four days after the deposit, Payment of pay the same into court; and shall take from the officer court by the receiving the same, two certificates of such payment, the sheriff. one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited, as in other cases of delinquency. |